Opinion
CV166059114S
09-01-2016
Lynette Omdahl et al. v. Yale-New Haven Hospital et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS #101
Robin L. Wilson, J.
FACTS
On December 15, 2015, the plaintiffs, Lynette Omdahl and Peter Omdahl, filed a complaint dated November 25, 2015, against the defendants, Yale New Haven Hospital, Liudvikas Jagminas, M.D., and Richard Chen, P.A. alleging medical malpractice. The plaintiffs' action arises from an infection that Lynette suffered after medical treatment she received from the defendants on August 31 and September 2, 2013, for a dog bite to her hand. On February 4, 2016, the defendants filed a motion to dismiss and memorandum of law in support for lack of personal jurisdiction. On May 12, 2016, the plaintiffs filed a memorandum in opposition to the defendants' motion. Oral argument was heard on the motion at short calendar on May 31, 2016.
DISCUSSION
The defendants move to dismiss the claims against them for lack of personal jurisdiction on the following grounds (1) there was no service of process on Jagminas and (2) the plaintiffs failed to attach a written opinion letter of a similar health care provider as required under General Statutes § 52-190a(a) to bring a medical malpractice action.
I
INSUFFICIENT SERVICE OF PROCESS
Generally, " [a] defect in process . . . such as an improperly executed writ, implicates personal jurisdiction, rather than subject matter jurisdiction." (Internal quotation marks omitted.) Morgan v. Hartford Hospital, 301 Conn. 388, 400, 21 A.3d 451 (2011). " [A]n action commenced by . . . improper service must be dismissed." (Internal quotation marks omitted.) Matthews v. SBA, Inc., 149 Conn.App. 513, 530, 89 A.3d 938, cert. denied, 312 Conn. 917, 94 A.3d 642 (2014). In the present case, the defendants note that the officer's return dated November 25, 2015, does not state that process was served on Jagminas (Docket entry no. 100.30). Jagminas averred that he has not lived in Connecticut since May 2014. (Def. Ex. C.) At oral argument, the plaintiffs conceded that Jagminas was not properly served process. Accordingly, the motion to dismiss for lack of personal jurisdiction over Jagminas is granted on the grounds of insufficiency of process and insufficient service of process.
II
FAILURE TO FILE MEDICAL OPINION LETTER
The defendants argue that the plaintiff failed to attach a signed, written opinion letter from a similar health care provider when they filed their initial complaint, which warrants dismissal for lack of personal jurisdiction. In response, the plaintiffs request that this court make an exception to § 52-190a(a) because, although their counsel made good faith efforts to obtain a written opinion letter, the opinion author failed to provide the opinion letter to counsel in a timely fashion. The plaintiffs now seek to attach this opinion letter by way of amendment to the complaint (Docket entry no. 104). The plaintiffs highlight language in § 52-190a(a) that arguably grants the trial court discretion in considering other factors to determine whether they had met the good faith requirements in filing a medical malpractice action. Specifically, § 52-190a (a) provides in relevant part: " In addition to such written opinion, the court may consider other factors with regard to the existence of good faith." It also specifically provides in relevant part: " No civil action . . . shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant." (Emphasis added.)
Relying on this language, the plaintiffs urge this court to liberally construe § 52-190a(a) and consider the plaintiffs' counsel's efforts to obtain a written opinion letter given circumstances beyond his control. In support of their objection, the plaintiffs attach the affidavit of their attorney, William Bilcheck. Attorney Bilcheck attests that he was unable to obtain an opinion letter from Lynette's treating physician after complications from treatment by the defendants because he refused to provide one for this case despite counsel's numerous requests. Pl. Ex. B, ¶ ¶ 6-7. He further attests that, in November 2015, he had a conversation with an out-of-state physician who provided the opinion letter attached to the plaintiffs' request to amend. Id., ¶ ¶ 9-10, 16. Attorney Bilcheck attests that he was unable to obtain a written letter until December 2015, due to conflicts with this physician's work and travel schedules. Id., ¶ 11. In addition, counsel concedes that no opinion letter was attached to the complaint when it was served by a state marshal and when it was filed with the court. Id., ¶ ¶ 14-15. Counsel further attests that on the basis of his conversation with the out-of-state physician, however, he determined that he made a reasonable inquiry and that there was a good faith basis for a medical malpractice action in the absence of the opinion letter. Id., ¶ 13. Thus, the plaintiffs argue that this court's decision should not turn on when the opinion letter should have been attached to the certificate of good faith and inquiry. Rather, in addition to the certificate, it should turn on whether the plaintiffs had made a reasonable inquiry to form a good faith basis for their medical malpractice claim prior to serving the complaint.
General Statutes § 52-190a(a) provides in relevant part: " No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant. The complaint, initial pleading or apportionment complaint shall contain a certificate of the attorney or party filing the action or apportionment complaint that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c . . ." Furthermore, § 52-190a(c) states: " The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action."
" [T]he attachment of the written opinion letter of a similar health care provider is a statutory prerequisite to filing an action for medical malpractice. The failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court . . . The jurisdiction that is found lacking, however, is jurisdiction over the person, not the subject matter . . . [An opinion letter] is in the nature of a pleading that must be attached to the complaint." (Citation omitted; footnote omitted; internal quotation marks omitted.) Morgan v. Hartford Hospital, supra, 301 Conn. 401-02; see also Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 28-29, 12 A.3d 865 (2011) (finding that legislative history supported legislature's intent that cases be dismissed for failure to attach written opinion letter and affirming interpretation of § 52-190a(c) in Rios and Votre ); Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 583-84, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) (concluding that dismissal pursuant to § 52-190a(c) is statutory remedy for any defendant who is subject to legal action in which required written opinion is not attached to complaint or initial pleading); Rios v. CCMC Corp., 106 Conn.App. 810, 822, 943 A.2d 544 (2008) (concluding that plain language of § 52-190a(c) requires dismissal of action when plaintiff fails to attach written opinion to complaint). " Because the purpose of § 52-190a is to require the opinion prior to commencement of an action, allowing a plaintiff to obtain such opinion after the action has been brought would vitiate the statute's purpose by subjecting a defendant to a claim without the proper substantiation that the statute requires." Votre v. County Obstetrics & Gynecology Group, P.C., supra, 585. See also Torres v. Carrese, 149 Conn.App. 596, 611 n.14, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014).
Section 52-190a(c) clearly provides: " The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." Despite the language that the plaintiffs highlight in subsection (a), subsection (c) provides clear direction as to how courts are to treat failures to obtain and file a written opinion letter. For this court to carve out an exception to subsection (c) under the circumstances would undermine our well-established principles of statutory interpretation. See General Statutes § 1-2z (" The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered"). It would also undermine the purpose of the statute to ensure that an injured party's pursuit of a medical malpractice claim is sufficiently substantiated at the time the action is filed and the legislature's intent that failure to file an opinion letter warrants dismissal. In addition, such an exception would be contrary to the great weight of appellate authority that has found the language of § § 52-190a(a) and (c) to be clear and unambiguous. An exception would be contrary to the appellate authority that has deemed the requirements under these sections necessary to the sufficiency of process and service of process, and therefore, necessary for this court to acquire proper personal jurisdiction over the defendants.
Furthermore, the plaintiffs' requests for the court to carve out exceptions to and adopt contrary interpretations of § § 52-190a(a) and (c) are beyond the court's authority. " [The court is] bound to uphold the laws the legislature adopts. Subsection (c) of [§ 52-190a] plainly states that a failure to file the written opinion required by subsection (a) 'shall be grounds for the dismissal of the action.' Any change to the dismissal remedy when the required written opinion is not annexed to the complaint would require a legislative remedy, not a judicial one." Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 584. Therefore, in accordance with § 52-190a and our case law interpreting it, the defendants' motion to dismiss for lack of personal jurisdiction over the remaining defendants on the ground of insufficiency of process in that the plaintiffs failed to attach a written opinion of a similar health care provider to their complaint is granted.
Although the plaintiffs have filed a request for leave to amend their complaint, which includes the requisite written opinion letter, this request to amend was filed on May 11, 2016, well after the statute of limitations and after the defendants filed their motion to dismiss. The statute of limitations expired on August 31, 2015, and the ninety-day tolling pursuant to § 52-190a(b) extended this date to November 30, 2015. This action was commenced by service of process on December 3, 2015. The defendants filed their motion to dismiss on February 4, 2016. As a result, this court cannot consider the recently filed letter. See Torres v. Carrese, 149 Conn.App. 596, 611 n.14, 90 A.3d 256, cert. denied, 312 Conn. 912, 93 A.3d 595 (2014) (" Although the plaintiff may have obtained opinion letters from [similar health care providers] after the action commenced, after the defendants had filed their motions to dismiss, and after the statute of limitations had expired, the court may not consider those documents").
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted in its entirety.
The plaintiffs may not be without recourse in light of dismissal pursuant to § 52-190a(c). " [T]he remedy of dismissal may, standing alone, have harsh results for plaintiffs . . . Thus, we emphasize that, given the purpose of § 52-190a, which is to screen out frivolous medical malpractice actions, plaintiffs are not without recourse when facing dismissal occasioned by an otherwise minor procedural lapse . . . First, the legislature envisioned the dismissal as being without prejudice . . . and even if the statute of limitations has run, relief may well be available under the accidental failure of suit statute, General Statutes § 52-592." (Citation omitted.) Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 30-31. " [A] plaintiff may bring a subsequent medical malpractice action pursuant to the matter of form provision of § 52-592(a) only when the trial court finds as a matter of fact that the failure in the first action to provide an opinion letter that satisfies § 52-190a(a) was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney." (Emphasis omitted; internal quotation marks omitted.) Santorso v. Bristol Hospital, 308 Conn. 338, 358, 63 A.3d 940 (2013).
In addition, the opinion letter is dated December 30, 2015. The complaint is dated November 25, 2015 and was filed with the court on December 15, 2015. The officer's return is dated November 25, 2015 and states that process was placed in his hands by plaintiff's attorney on November 25, 2015 and was served on the defendants on December 3, 2015. Thus, pursuant to 52-593a process was served within thirty days of delivery. The plaintiffs' counsel averred that a written opinion letter was not attached when the complaint was served and filed. Pl. Ex. B ¶ 14-15. Thus, the opinion letter did not exist at the time that the plaintiffs filed and commenced this action. The plaintiffs cannot now amend their complaint to include the opinion letter that was required to be in existence when they filed and commenced this action. See Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 586, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009) (" The plaintiff could not turn back the clock and attach by amendment an opinion of a similar health care provider that did not exist at the commencement of the action"). Our appellate court has acknowledged that amending a complaint can cure a defect in a written opinion letter where the plaintiff filed an opinion letter in the initial complaint, but that opinion letter is challenged as or found to be legally insufficient. See Gonzales v. Langdon, 161 Conn.App. 497, 510, 128 A.3d 562 (2015). Thus, a plaintiff may be permitted to amend her complaint to amend or substitute an existing opinion letter attached to an initial complaint when the legal adequacy of the opinion letter is at issue. The circumstances are not as such in the present case. The court in Gonzales also noted its discussion in Votre regarding a trial court's discretion in permitting an amendment to a complaint to include an opinion letter existing at the time of the action, but inadvertently not attached to the complaint. See id., 511-13. The court stated that this discussion in Votre was dicta because the issue in Votre was the non-existence of an opinion letter at commencement and filing of the plaintiff's action and the plaintiff's lack of effort to obtain one. Id. The dicta in Votre is as follows: " Given the fallibility existing in the legal profession . . . it is possible that a written opinion of a similar health care provider, existing at the time of commencement of an action, might be omitted through inadvertence. In such a scenario, it certainly may be within the discretionary power of the trial judge to permit an amendment to attach the opinion, and, in doing so, deny a pending motion to dismiss. Such a discretionary action would not be at variance with the purpose of § 52-190a, to prevent groundless lawsuits against healthcare providers." (Emphasis added; footnote omitted.) Votre v. County Obstetrics & Gynecology Group, P.C., supra, 113 Conn.App. 585. Even if this court were to consider this dicta, it could not properly exercise discretion to permit the plaintiffs to attach an opinion letter by way of amendment. While the plaintiffs' attorney's omission of the opinion letter may have been inadvertent, as explained above, the opinion letter did not exist at the time the action was filed and commenced. As reasoned in Votre, where it is clear that no opinion letter existed at the time this action was commenced, there is no room for this court to exercise discretion in permitting the plaintiffs, here to amend their complaint for the purpose of attaching a missing opinion letter. See id., 585-86. As a result, the plaintiffs' request to amend cannot cure their failure to attach an opinion letter to their complaint.